Norton v. Davis

• Decision Date: 19 January 1892
• Citation: 18 S.W. 430
• Parties: NORTON v. DAVIS.
• Court: Texas Supreme Court

18 S.W. 430

NORTON v. DAVIS.

Supreme Court of Texas.

January 19, 1892.

Commissioners' decision. Section B. Appeal from district court, Hunt county.

Action by Frances A. Davis against A. B. Norton and others for partition and trespass to title. Judgment for plaintiff. Defendant Norton appeals. Affirmed.

Word & Charlton and Matthews & Neyland, for appellant. Cobb & Avery, for appellee.

FISHER, J.

This suit was instituted February 27, 1889, by appellee, Frances A. Davis, against A. B. Norton, C. L. Jones, T. D. Isbell, M. C. Isbell, J. A. J. Franklin, J. N. Mills, R. Floyed, J. J. Holt, Thomas Jordam, Cherly Wilson, Norris Wilson, A. W. Fondren, and B. L. Manning. She sued for an undivided one-half interest in 3,085 acres of the Antonio Rodriguez survey, and alleged that the other undivided interest in said land was owned by all of the defendants except Norton. The suit was only a partition suit between plaintiff and all defendants except Norton, and as to A. B. Norton it was a trespass to title for one-half of said land. On motion of Norton the venue was charged to Hunt county, May 5, 1890. January 5, 1890, Norton filed amended original answer for himself, and pleaded that plaintiff ought not to sue alone, but should be joined by her husband, George L. Davis; and a general denial. Also pleaded that on the 7th day of March, 1873, Frances A. Davis, who is appellee in this cause, made, signed, executed, acknowledged, and delivered a deed of conveyance conveying all her right, title, and interest in and to the land sued for to A. B. Norton, who is the appellant in this cause; that said deed was also signed and acknowledged by George L. Davis, the husband of said Frances A. Davis; that the acknowledgment of Frances A. Davis to said deed was taken before S. P. Sherrill in Lincolnton, N. C.; that she was examined privily and apart from her husband, and the contents of said deed were fully explained to her by said officer, and that she made all acknowledgments and declarations required by the Texas laws; that said officer, in his certificate of acknowledgment, failed through inadvertence to recite all the facts, and did not evidence fully and formally all the facts and declarations as required by law. Defendant Norton asked that that acknowledgment made by S. P. Sherrill be corrected, and that said certificate be adjudged and made to read properly, and in accordance with law, just as it was really made and taken by said officer. Defendant asked that he have judgment perpetuating the testimony that said separate acknowledgment of Frances A. Davis was properly made and taken, and prayed for special and equitable relief, and that he have judgment for the undivided one-half interest in the land sued for; and, if the proofs should show that Mrs. Davis' acknowledgment was taken, and the deed explained to her by Sherrill, so as to convey a life-estate only, then defendant asks a correction of the certificate and reformation of the deed as to said life-estate. Defendant also pleaded three and five years' statute of limitations, and suggestions of improvements in good faith. The deed of Davis and wife and certificate of acknowledgment sought to be corrected were referred to and made a part of said plea. Appellee, by supplemental petition, demurred to Norton's answer, and pleaded a general denial, and that the cross-action of Norton, seeking to correct the certificate of acknowledgment, was barred by the four-years statute of limitation and as to the pleas of limitation presented by Norton she pleaded coverture to defeat the operation of the statute. Judgment was rendered in favor of appellee against Norton for 1,642 acres of the land, and in favor of all the other defendants against appellee for 1,442½ acres of land. Appellant Norton alone appeals.

There are several assignments of error presenting questions for our revision, which we do not regard as errors committed by the trial court, and we will dispose of them by saying: First. The court did not err in permitting appellee to sue alone, without her husband being joined with her, as the evidence shows the lands to be her separate property, and that the husband had abandoned the wife, and neglected to sue for the property. The court properly granted her permission to sue alone. Second. The court did not err in refusing to permit appellant to read interrogatory No. 33, propounded to appellee by appellant, as confessed. A reasonable explanation was given by a appellee why she did not fully answer the interrogatory, and a full answer thereto was furnished appellant by appellee. We see no abuse of the discretion of the court in this particular.

The important questions in the case are: (1) Did the...